Harry v The General Medical Council

On 19 September 2012 I heard Dr Harry’s application, made pursuant to section 41(A)(10) of the Medical Act 1983 [“the Act”], to terminate the suspension of 18 months imposed by the Interim Orders Panel of the General Medical Council [“the Panel”] on 4 April 2012. In the course of that hearing I was told that the Panel was meeting on 21 September 2012 to review the suspension. In those circumstances I gave my decision immediately, which was to terminate the suspension. These are my reasons for doing so.

The application was brought by way of Part 8 proceedings and heard in the Queen’s Bench list, rather than in the Administrative Court list as had hitherto been the practice. The High Court is specified as the relevant court to which such applications must be made. The modification in procedure has not had any impact on the legal principles in play, which are well established in authority. The jurisdiction is an original one, rather than one of review. The court will only terminate an order of suspension if it is satisfied that the order was wrong. However, the court will always be mindful that it is being asked to overturn a decision of a specialist disciplinary panel and thus accord considerable respect to a reasoned decision of the Panel. Inadequacy of reasoning does not in itself provide a ground for terminating an order of suspension. But if the reasoning is inadequate or opaque the weight to be attached to the professional opinion of the Panel will be diminished: R (Walker) v. GMC [2003] EWHC 2308 (Admin); Sheikh v. General Dental Council [2007] EWHC 2972 (Admin); GMC v. Sandler [2010] EWHC 1029 (Admin); Madan v. GMC [2001] EWHC 577 (Admin). Section 41A enables the Panel to make an interim order when:

“…satisfied that it is necessary for the protection of the public or otherwise in the public interest, or in the interests of a fully registered person…”

The test of ‘necessity’ attaches to the protection of the public, rather than the ‘public interest’ limb of the test. Nonetheless, there is some implication of necessity or desirability: Sheikh at [15]; Sandler at [14].

The statutory scheme enables the Panel to impose conditions on practice pending the resolution of disciplinary proceedings as an alternative to suspension if it considers some action is required in the interim. However, the jurisdiction of the court on an application under section 41(A)(10) of the Act is limited to upholding or terminating the suspension. No power has been conferred by Parliament to substitute conditions for the suspension.

Dr Harry was employed by the James Paget University Hospitals NHS Foundation Trust [“the Trust”] as a consultant in genito-urinary medicine until he was summarily dismissed on 4 January 2012. He qualified in 1979. He had been a consultant since 1996. Dr Harry maintained a private practice alongside his NHS consultancy, albeit for very small numbers of patients. The private practice included work in Nigeria, to which he travelled from time to time. In December 2010 Dr Harry was suspended from his NHS post and disciplinary proceedings were instigated by the Trust. There were five allegations against Dr Harry:

Allegations (i), (ii) and (iv) were all variations of a single theme: namely that he did not properly insulate his private practice from his NHS practice and thus wrongly provided NHS benefits to some of his private patients. It was, however, allegations (iii) and (v) which primarily featured in the Panel’s decision to suspend. Allegation (iii) had two components with a common background. The transportation of human blood is governed by strict regulations. On a return journey from Nigeria in December 2010, Dr Harry accepted that he carried two samples of blood, one infected with HIV, in his hand luggage. He said that they were appropriately packed in accordance with the regulations, but agreed that the regulations required them to go in the hold. He said that he had been unaware of this. The second aspect is that he opened the package in which the samples had been transported at home. He then took them to the laboratory. The regulations require that samples be opened in the laboratory. The rational behind these strictures is not difficult to divine. Should an incident occur in which a phial of infected blood is broken there is a risk that people might inadvertently come into contact with it and be exposed to infection. Allegation (v), which was admitted by Dr Harry, came about in this way. When he was confronted with the suggestion that he was using NHS resources for private patients, he asked a member of staff to amend the paperwork relating to a patient. But within half an hour, and without any intervention by another person, he realised the folly of that course and reversed his request.

The Trust’s disciplinary panel found the allegations proved and set out its reasons in a letter dated 18 January 2012. That panel noted that Dr Harry accepted the first allegation but ‘were unconvinced’ that he believed an identified patient was eligible for NHS treatment. They seem to have placed the burden of proof upon Dr Harry. This allegation concerned two patients. The second allegation appears to have related to a single prescription. The Trust’s panel said they “were shown a copy of the prescription in question which was not marked ‘private patient’. The panel therefore consider this to be an act of dishonesty.” It might be thought that the premise does not lead to the conclusion without a good deal more. So far as the third allegation is concerned they found Dr Harry’s ‘explanation unconvincing and were left with some doubt whether [he] had used’ the correct packaging. They do not appear to have proceeded on the basis that he did not use the correct packaging. That said, on his own account he had breached the regulations. The fourth allegation was found proved and related to using NHS ‘admin and stationery costs’ in connection with private patients. In particular, NHS staff spent time on Dr Harry’s private patients creating and maintaining their medical records. The panel considered that the fifth allegation amounted to an attempt ‘to cover his tracks’.

The Trust commissioned a report from Price Waterhouse Cooper which was concerned to determine whether there had been any fraud. There is plainly a great difference between bad practice, and fraudulent practice. In May 2011 PwC reported. Dr Harry is referred to as ‘the Subject’. It summarised its findings in this way:

“In summary the investigation identified:

•

Based upon current evidence available, the two patients with …reference numbers … were not entitled to free treatment on the NHS. The Subject accepted responsibility for this error;

•

Of 44 other patients believed to have been in receipt of private treatment by the Subject, there was no evidence that any had received tests or drugs on the NHS to which they not entitled;

•

Evidence that the Subject has used NHS staff, facilities and consumables to administer and treat private patients. It is not possible to quantify, with a reasonable degree of accuracy, the financial loss to the Trust of this practice;

•

No evidence to suggest that the Subject was trying to conceal private patient activity. It had been disclosed to the Trust via activity returns that private patients were administered and treated in the department for a number of years and this had been unchallenged;

•

A lack of distinction in the administration surrounding NHS and private patient activity undertaken by the Subject.”

The report went on to identify a number of recommendations for the Trust to improve its systems and procedures relating to the private practices of its medical staff. It suggested that the evidence could not support a conclusion that Dr Harry was guilty of fraud. The conclusion that two patients were not entitled to NHS treatment may seem to have been a straightforward one. However, the question is not free from difficulty, as the Trust’s internal investigation demonstrated. It has always been Dr Harry’s contention that, whilst he accepts the position now, he had a genuine belief to the contrary at the time.

The Trust referred the matter to the GMC. On 21 March 2012 a letter was sent to Dr Harry by special delivery inviting him to appear before the Panel. The Panel would ‘consider whether it is necessary for the protection of members of the public, or is otherwise in the public interest, or in your own interests, that an interim order should be made suspending your registration, or imposing conditions upon your registration for a period not exceeding 18 months.’ As already noted, that is the test which the Panel was obliged to apply by section 41(A)(1). The hearing took place on 4 April 2012. The Panel considered the same allegations as had founded the internal disciplinary process. It is common ground that it forms no part of the function of the Panel at this stage in the GMC disciplinary process to make findings of fact. In submitting that suspension was necessary in this case, counsel for the GMC referred to probity issues, safety issues arising from the way in which the blood was transported and reputational issues for the Trust. Dr Harry’s advocate referred to his unblemished record, his voluntary teaching in the third world, his publications and the advisory roles he had relating to HIV and AIDS and to various testimonials. He took the Panel to the PwC report. He explained Dr Harry’s response to each of the allegations. He submitted that it was inappropriate to impose any interim measure. He took the Panel to extensive sections of the Guidance issued by the GMC to assist in determining whether suspension is appropriate, within the meaning of the section. He concluded by submitting that even if the Panel rejected the submission that no interim measure was called for, a condition restricting Dr Harry to NHS practice would meet all concerns.

The Guidance is designed to promote ‘consistency and transparency in decision making relating to interim orders.’ Paragraphs 18, 19 and 20 explain:

“18.

The IOP must consider, in accordance with section 41A, whether to impose an interim order. If the IOP is satisfied that:

a)

in all the circumstance that there may be impairment of the doctors’ fitness to practise which poses a real risk to members of the public, or may adversely affect the public interest or the interests of the practitioner:

and

b)

after balancing the interests of the doctor and the interests of the public, that an interim order is necessary to guard against such risk,

the appropriate order should be made.

19.

In reaching a decision whether to impose an interim order and IOP should consider the following issues:

a)

The seriousness of risk to members of the public if the doctor continues to hold unrestricted registration. In assessing this risk the IOP should consider the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents occurring during the relevant period.

b). Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period.

c).Whether it is in the doctor’s interests to hold unrestricted registration. For example, the doctor may clearly lack insight and need to be protected from him or herself.

20.

In weighing up these factors, the IOP must carefully consider the proportionality of their response in dealing with the risk to the public interest (including patient safety and public confidence) and the adverse consequences of any action on the doctor’s own interests.”

In the context of doctors being prosecuted for or accused of crimes, which is not this case, the Guidance makes clear that suspension is not always appropriate, save in cases involving serious allegations. The overarching question identified by the Guidance, if patient safety is not directly engaged, is to ask what the reaction of the public would be in the event of the allegation being established and discovering that suspension was not imposed in the interim: paragraphs 23, 24, 35, 36. Paragraph 33 encapsulates the approach to the ‘public interest’ criterion:

“It is … the responsibility of the [Panel] to consider whether, if the allegations are later proved, it will damage public confidence to learn the doctor continued working with patients while the matter was investigated.”

The Panel’s decision was reduced to writing and covers three and a half pages of double spaced typing. It recorded the statutory provision in play, noted the allegations and that the internal process had found them proved. The Panel noted that it had taken account of all the material and submissions placed before it and recited a summary of a number of them. In particular, it summarised the GMC’s submission that ‘in the light of the serious concerns in relation to Dr Harry’s conduct and probity along with the public safety risks in relation to the transfer of blood samples from Nigeria to the UK … it is necessary that an interim order of suspension be imposed...’ There followed a short summary of the arguments advanced by Dr Harry’s advocate.

Its core reasoning is found in the following extracts from the decision:

“The Panel has considered the submissions made by Mr Taylor on behalf of the GMC that in light of the serious concerns in relation to Dr Harry’s conduct and probity along with public safety risks in relation to the transfer of blood sample from Nigeria to the UK, which was outside the sample transportation rules, it is necessary that an interim order of suspension be imposed on Dr Harry’s registration.

…

The Panel is satisfied that there may be impairment to Dr Harry’s fitness to practise which poses a real risk to members of the public or which may adversely affect the public interest or his own interests and, after balancing Dr Harry’s interest and the interests of the public, an interim order is necessary to guard against such risk.

The Panel has taken account of the principle of proportionality and has balanced the need to protect members of the public, the public interest and Dr Harry’s own interests against the consequences for him of the suspension of registration. Whilst it notes that its order has removed Dr Harry’s ability to practise medicine it considers that, in the light of the serious concerns raised by the Trust in relation to allegations about transportation of human blood samples and the request to amend patient records involving a colleague as agent, the Panel is of the view that there are no workable conditions which would adequately protect members of the public and the public interest, and it is therefore satisfied that the order of suspension is a proportionate response.

In deciding the period of eighteen months, the Panel has taken account of the uncertainty of time needed to resolve all the issues in the case.”

Mr Hyam submits on behalf of Dr Harry that the reasons given by the Panel are inadequate. To my mind the reasoning is thin. It is clear that the Panel was concerned about the transportation of samples from Nigeria and the short-lived and admitted attempt by Dr Harry to cover his tracks. Although the Panel noted that the GMC had rested on general submissions relating to Dr Harry’s probity, it is striking, and in my judgment correct, that the balance of the allegations did not feature in the Panel’s reasons for suspension. That is because Dr Harry had not been charged with any criminal offence, indeed the evidence suggested that none could be established and the nature of those allegations is not such as to give rise to public interest concerns calling for interim suspension. As is immediately apparent, the reasons draw on formulae found in the Guidance. The reference to an ‘impairment to Dr Harry’s fitness to practise … which may adversely affect … his own interests’ was, as Mr Hurst for the GMC recognised, an error that appears to have crept in as a result of using the omnibus language of the Act and Guidance.

The Panel expressed itself as being concerned to protect members of the public and as acting in the public interest. It concluded that there was real risk to members of the public.

Dr Harry’s case raises no concerns about ‘patient safety’ in the sense so often encountered in GMC cases. All too often the alleged conduct is such as to give rise to a real risk that if the doctor concerned continued to practise, patients would be put at risk. The risk in this case concerned the possibility that as a result of the inappropriate transportation of blood samples in December 2010 and in the event of damage, a member of the public might have come into contact with infected blood. Suspension is concerned to protect against a real continuing risk. It is looking to the future, albeit in the light of what is alleged to have occurred in the past. It can, however, do nothing to affect or undo what may have happened in the past. What, then, was the continuing risk? Any continuing risk to the public could only arise were Dr Harry to repeat the error that he had made in the past with regard to transporting blood samples. Nothing in the material before the Panel, or in the papers before the Court, supports the proposition that in the face of all that had occurred, Dr Harry realistically might again transport blood contrary to the regulations in place. In my judgment, there was no real risk to members of the public in Dr Harry’s continuing to practise.

I am also not satisfied that the inappropriate transportation of blood samples, accepted by Dr Harry in the way he explained, coupled with the improper request to his colleague, also accepted, could justify his suspension in the public interest pending the resolution of the disciplinary proceedings. The reasons provide no explanation of why the public interest requires Dr Harry’s suspension, still less why suspension is proportionate in all the circumstances. In considering whether the public interest calls for suspension (even before looking at proportionality) is it relevant to consider what the reaction of the public would be when the disciplinary process is complete and it is apparent that suspension did not occur. The information currently available suggests that Dr Harry, a senior consultant of unblemished record, carried packed samples in his hand-luggage when they should have been in the hold, and opened them in his home rather than the laboratory. It may be that the GMC investigation will further illuminate the facts. There is no doubt, because Dr Harry admits it, that he requested a member of staff to amend a record but countermanded his request very quickly. That is unquestionably a serious matter. Nonetheless, my conclusion is that public confidence would not be damaged were he able to continue to practise pending the resolution of the disciplinary proceeding. This a case in which the Fitness to Practise Panel, which in due course will determine all five allegations, will be able to consider where the public interest lies when it comes to deal with sanction. Whether or not any of the allegations denied by Dr Harry is established, those material to the conclusion of the Panel to suspend are in effect admitted albeit that there may be arguments about the detail of what occurred and any mitigation. An informed and reasonable member of the public would not, in my judgment, be offended by Dr Harry’s continuing in practise in the meantime.

The Panel indicated that it had considered the proportionality of suspension, without indicating the factors that weighed against, beyond Dr Harry’s inability to practise medicine. That is inherent in all suspensions. In this case, because Dr Harry had left the employment of the Trust, suspension prevented him from seeking alternative permanent or locum work in the United Kingdom. There was an indication before the Panel that he was able to do some work in Nigeria (where the suspension did not bite). As here, the financial consequences of suspension are often likely to be serious. Even had I been persuaded that the public interest called for suspension to be considered, I am very doubtful whether it would have been proportionate in this case. In the light of all that is known of Dr Harry and the allegations he will face before the Fitness to Practise Panel of the GMC I conclude that the suspension was heavy handed and disproportionate.

The Panel set out why it ordered a suspension of 18 months. The question of proportionality arises not only at the stage of considering whether to suspend but also for how long. There will almost always be some ‘uncertainly of the time needed to resolve all the issues’ in a case, although Dr Harry’s case appears relatively straightforward given the work already done by the Trust. The pressure on the Fitness to Practise Panel of the GMC is well known. It has many cases outstanding and limited resources. However, the indication from counsel was that if interim suspension is ordered it is likely to be for 18 months. It should not be overlooked that Parliament has provided that 18 months is the maximum period of suspension that the Panel can impose. There will be many cases in which suspension is proportionate for a short period but not for as long as 18 months, given the very serious consequences it has upon the doctor concerned. 18 months should not become a default position.